bench bar in Oregon

2025First, I am concerned that our existing plain error framework, first articulated in Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82 , 823 P2d 956 (1991), might not provide predictable resolutions for the bench and bar in criminal cases.

2025First, I am concerned that our existing plain error framework, first articulated in Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82 , 823 P2d 956 (1991), might not provide predictable resolutions for the bench and bar in criminal cases.

2017In Colby v. Gunson, 224 Or App 666, 671-72 , 199 P3d 350 (2008), rev’d on other grounds, 349 Or 1 , 238 P3d 374 (2010), we cautioned about reliance on the expressio unius maxim to determine legislative intent: “We qualified the value of that maxim in determining statutory intent in State ex rel City of Powers v. Coos County Airport, 201 Or App 222, 234 , 119 P3d 225 , rev den, 341 Or 197 (2005): “‘[B]oth we and the Supreme Court have repeatedly warned the bench and bar that expressio unius is not a rule of law but is instead a guide to understanding legislative intent. * * * The maxim “is to b

2017In Colby v. Gunson, 224 Or App 666, 671-72 , 199 P3d 350 (2008), rev’d on other grounds, 349 Or 1 , 238 P3d 374 (2010), we cautioned about reliance on the expressio unius maxim to determine legislative intent: “We qualified the value of that maxim in determining statutory intent in State ex rel City of Powers v. Coos County Airport, 201 Or App 222, 234 , 119 P3d 225 , rev den, 341 Or 197 (2005): “‘[B]oth we and the Supreme Court have repeatedly warned the bench and bar that expressio unius is not a rule of law but is instead a guide to understanding legislative intent. * * * The maxim “is to b

2017In Colby v. Gunson, 224 Or App 666, 671-72 , 199 P3d 350 (2008), rev’d on other grounds, 349 Or 1 , 238 P3d 374 (2010), we cautioned about reliance on the expressio unius maxim to determine legislative intent: “We qualified the value of that maxim in determining statutory intent in State ex rel City of Powers v. Coos County Airport, 201 Or App 222, 234 , 119 P3d 225 , rev den, 341 Or 197 (2005): “‘[B]oth we and the Supreme Court have repeatedly warned the bench and bar that expressio unius is not a rule of law but is instead a guide to understanding legislative intent. * * * The maxim “is to b

2017In Colby v. Gunson, 224 Or App 666, 671-72 , 199 P3d 350 (2008), rev’d on other grounds, 349 Or 1 , 238 P3d 374 (2010), we cautioned about reliance on the expressio unius maxim to determine legislative intent: “We qualified the value of that maxim in determining statutory intent in State ex rel City of Powers v. Coos County Airport, 201 Or App 222, 234 , 119 P3d 225 , rev den, 341 Or 197 (2005): “‘[B]oth we and the Supreme Court have repeatedly warned the bench and bar that expressio unius is not a rule of law but is instead a guide to understanding legislative intent. * * * The maxim “is to b

2017In Colby v. Gunson, 224 Or App 666, 671-72 , 199 P3d 350 (2008), rev’d on other grounds, 349 Or 1 , 238 P3d 374 (2010), we cautioned about reliance on the expressio unius maxim to determine legislative intent: “We qualified the value of that maxim in determining statutory intent in State ex rel City of Powers v. Coos County Airport, 201 Or App 222, 234 , 119 P3d 225 , rev den, 341 Or 197 (2005): “‘[B]oth we and the Supreme Court have repeatedly warned the bench and bar that expressio unius is not a rule of law but is instead a guide to understanding legislative intent. * * * The maxim “is to b

2008Defendant relies on a maxim of statutory construction, expressio unius est exclusio alterius, “the expression of one is the exclusion of others.” We qualified the value of that maxim in determining statutory intent in State ex rel City of Powers v. Coos County Airport, 201 Or App 222, 234 , 119 P3d 225 , rev den, 341 Or 197 (2005): “[B]oth we and the Supreme Court have repeatedly warned the bench and bar that expressio unius is not a rule of law but is instead a guide to understanding legislative intent. * * * The maxim ‘is to be applied with caution and merely as an auxiliary rule to determin

2024Under State v. Brown, 297 Or 404, 417 , 687 P2d 751 (1984), and State v. O’Key, 321 1 I am reminded of Justice O’Connor’s observation, in her concurrence in City of Ladue v. Gilleo, 512 US 43, 60 , 114 S Ct 2038 , 129 L Ed 2d 36 (1994), that the practice of assuming without deciding carries certain consequences, including lost opportunities to develop and refine the law in an area.

2024Under State v. Brown, 297 Or 404, 417 , 687 P2d 751 (1984), and State v. O’Key, 321 1 I am reminded of Justice O’Connor’s observation, in her concurrence in City of Ladue v. Gilleo, 512 US 43, 60 , 114 S Ct 2038 , 129 L Ed 2d 36 (1994), that the practice of assuming without deciding carries certain consequences, including lost opportunities to develop and refine the law in an area.

2024Under State v. Brown, 297 Or 404, 417 , 687 P2d 751 (1984), and State v. O’Key, 321 1 I am reminded of Justice O’Connor’s observation, in her concurrence in City of Ladue v. Gilleo, 512 US 43, 60 , 114 S Ct 2038 , 129 L Ed 2d 36 (1994), that the practice of assuming without deciding carries certain consequences, including lost opportunities to develop and refine the law in an area.

2024Under State v. Brown, 297 Or 404, 417 , 687 P2d 751 (1984), and State v. O’Key, 321 1 I am reminded of Justice O’Connor’s observation, in her concurrence in City of Ladue v. Gilleo, 512 US 43, 60 , 114 S Ct 2038 , 129 L Ed 2d 36 (1994), that the practice of assuming without deciding carries certain consequences, including lost opportunities to develop and refine the law in an area.

2022But, as we explained in Mowry, 350 Or at 698 , if a party can demonstrate that we failed to arrive at the correct result in interpreting a statutory provision, “because we were not presented with an important argument or failed to apply our usual framework for decision or adequately analyze the controlling issue, we are willing to reconsider the earlier case.” That is the case here.

2020Having recently addressed that issue in State v. Garrett, 300 Or App 671 , 455 P3d 979 (2019), and State v. Gialloreto, 301 Or App 585 , 457 P3d 1105 (2019), however, we no longer see a need to write on it in this case.

2020Having recently addressed that issue in State v. Garrett, 300 Or App 671 , 455 P3d 979 (2019), and State v. Gialloreto, 301 Or App 585 , 457 P3d 1105 (2019), however, we no longer see a need to write on it in this case.

2020Having recently addressed that issue in State v. Garrett, 300 Or App 671 , 455 P3d 979 (2019), and State v. Gialloreto, 301 Or App 585 , 457 P3d 1105 (2019), however, we no longer see a need to write on it in this case.

2020Having recently addressed that issue in State v. Garrett, 300 Or App 671 , 455 P3d 979 (2019), and State v. Gialloreto, 301 Or App 585 , 457 P3d 1105 (2019), however, we no longer see a need to write on it in this case.

2017In Colby v. Gunson, 224 Or App 666, 671-72 , 199 P3d 350 (2008), rev’d on other grounds, 349 Or 1 , 238 P3d 374 (2010), we cautioned about reliance on the expressio unius maxim to determine legislative intent: “We qualified the value of that maxim in determining statutory intent in State ex rel City of Powers v. Coos County Airport, 201 Or App 222, 234 , 119 P3d 225 , rev den, 341 Or 197 (2005): “‘[B]oth we and the Supreme Court have repeatedly warned the bench and bar that expressio unius is not a rule of law but is instead a guide to understanding legislative intent. * * * The maxim “is to b

2017In Colby v. Gunson, 224 Or App 666, 671-72 , 199 P3d 350 (2008), rev’d on other grounds, 349 Or 1 , 238 P3d 374 (2010), we cautioned about reliance on the expressio unius maxim to determine legislative intent: “We qualified the value of that maxim in determining statutory intent in State ex rel City of Powers v. Coos County Airport, 201 Or App 222, 234 , 119 P3d 225 , rev den, 341 Or 197 (2005): “‘[B]oth we and the Supreme Court have repeatedly warned the bench and bar that expressio unius is not a rule of law but is instead a guide to understanding legislative intent. * * * The maxim “is to b

2017In Colby v. Gunson, 224 Or App 666, 671-72 , 199 P3d 350 (2008), rev’d on other grounds, 349 Or 1 , 238 P3d 374 (2010), we cautioned about reliance on the expressio unius maxim to determine legislative intent: “We qualified the value of that maxim in determining statutory intent in State ex rel City of Powers v. Coos County Airport, 201 Or App 222, 234 , 119 P3d 225 , rev den, 341 Or 197 (2005): “‘[B]oth we and the Supreme Court have repeatedly warned the bench and bar that expressio unius is not a rule of law but is instead a guide to understanding legislative intent. * * * The maxim “is to b

2017In Colby v. Gunson, 224 Or App 666, 671-72 , 199 P3d 350 (2008), rev’d on other grounds, 349 Or 1 , 238 P3d 374 (2010), we cautioned about reliance on the expressio unius maxim to determine legislative intent: “We qualified the value of that maxim in determining statutory intent in State ex rel City of Powers v. Coos County Airport, 201 Or App 222, 234 , 119 P3d 225 , rev den, 341 Or 197 (2005): “‘[B]oth we and the Supreme Court have repeatedly warned the bench and bar that expressio unius is not a rule of law but is instead a guide to understanding legislative intent. * * * The maxim “is to b

2015Specifically, our consideration addresses, in turn: (1) the guidelines provisions that defendant invokes; (2) the content and operation of the dangerous offender statutes antedating the Supreme Court’s pivotal decision in State v. Davis, 315 Or 484 , 847 P2d 834 (1993) (Davis II); (3) the decision in Davis ; and (4) 1993 amendments to pertinent guidelines provisions, in the wake of Davis .

2015Specifically, our consideration addresses, in turn: (1) the guidelines provisions that defendant invokes; (2) the content and operation of the dangerous offender statutes antedating the Supreme Court’s pivotal decision in State v. Davis, 315 Or 484 , 847 P2d 834 (1993) (Davis II); (3) the decision in Davis ; and (4) 1993 amendments to pertinent guidelines provisions, in the wake of Davis .

2015Purdy, 355 Or at 229 .

2008In his second assignment, respondent argues that, as applied to him, the SPO impermissibly interferes with his freedom of expression in violation of Article I, section 8, of the Oregon Constitution. 2 On de novo review, Hanzo v. De Parrie, 152 Or App 525, 537 , 953 P2d 1130 (1998), rev den, 328 Or 418 (1999), we affirm.

2008In his second assignment, respondent argues that, as applied to him, the SPO impermissibly interferes with his freedom of expression in violation of Article I, section 8, of the Oregon Constitution. 2 On de novo review, Hanzo v. De Parrie, 152 Or App 525, 537 , 953 P2d 1130 (1998), rev den, 328 Or 418 (1999), we affirm.

2005Shaw, 338 Or at 610 . 6 We acknowledge that our analysis falls short of the desire of both parties that we reconcile the broader competing tensions in the case law and provide encompassing procedural guidance to the bench and bar.

2005A detailed discussion of the facts that lead us to those conclusions would not benefit the bench or bar. *441 The issue of the admissibility of the Breathalyzer test result is clouded, however, by the fact that the test result is not admissible in evidence under the implied consent law because defendant was not afforded a reasonable opportunity to consult privately with counsel before deciding whether to submit to the test. 8 See State v. Durbin, 335 Or 183 , 63 P3d 576 (2003) (holding that the constitutional right under Article I, section 11, of the Oregon Constitution to consult with counsel

2005A detailed discussion of the facts that lead us to those conclusions would not benefit the bench or bar. *441 The issue of the admissibility of the Breathalyzer test result is clouded, however, by the fact that the test result is not admissible in evidence under the implied consent law because defendant was not afforded a reasonable opportunity to consult privately with counsel before deciding whether to submit to the test. 8 See State v. Durbin, 335 Or 183 , 63 P3d 576 (2003) (holding that the constitutional right under Article I, section 11, of the Oregon Constitution to consult with counsel

2005See, e.g., Sunshine Dairy v. Peterson et al., 183 Or. 305, 324 , 193 P.2d 543 (1948); State ex rel Consumer League v. Zielinski, 60 Or.App. 654 , 658 n. 3, 654 P.2d 1161 (1982), rev. den., 294 Or. 682 , 662 P.2d 725 (1983); Miller v. Employment Division, 45 Or.App. 1117, 1123 , 610 P.2d 293 (1980).

2005See, e.g., Sunshine Dairy v. Peterson et al., 183 Or 305, 324 , 193 P2d 543 (1948); State ex rel Consumer League v. Zielinski, 60 Or App 654 , 658 n 3, 654 P2d 1161 (1982), rev den, 294 Or 682 (1983); Miller v. Employment Division, 45 Or App 1117, 1123 , 610 P2d 293 (1980).

2005See, e.g., Sunshine Dairy v. Peterson et al., 183 Or 305, 324 , 193 P2d 543 (1948); State ex rel Consumer League v. Zielinski, 60 Or App 654 , 658 n 3, 654 P2d 1161 (1982), rev den, 294 Or 682 (1983); Miller v. Employment Division, 45 Or App 1117, 1123 , 610 P2d 293 (1980).

2005See, e.g., Sunshine Dairy v. Peterson et al., 183 Or 305, 324 , 193 P2d 543 (1948); State ex rel Consumer League v. Zielinski, 60 Or App 654 , 658 n 3, 654 P2d 1161 (1982), rev den, 294 Or 682 (1983); Miller v. Employment Division, 45 Or App 1117, 1123 , 610 P2d 293 (1980).

2005See, e.g., Sunshine Dairy v. Peterson et al., 183 Or 305, 324 , 193 P2d 543 (1948); State ex rel Consumer League v. Zielinski, 60 Or App 654 , 658 n 3, 654 P2d 1161 (1982), rev den, 294 Or 682 (1983); Miller v. Employment Division, 45 Or App 1117, 1123 , 610 P2d 293 (1980).

2000The underlying legal principles are well-settled, e.g., State v. Carlson, 311 Or 201 , 808 P2d 1002 (1991), and elaboration of the facts would benefit neither the bench nor bar.

2000The underlying legal principles are well-settled, e.g., State v. Carlson, 311 Or 201 , 808 P2d 1002 (1991), and elaboration of the facts would benefit neither the bench nor bar.

1996The majority states: "[W]e conclude that the illegal frisk revealed information—the container's presence *957 in defendant's pocket—that focused Maloney's attention on defendant and prompted him to request consent to search." Stanley, 139 Or.App. at 536 , 912 P.2d at 954 .

1996The majority states: "[W]e conclude that the illegal frisk revealed information—the container's presence *957 in defendant's pocket—that focused Maloney's attention on defendant and prompted him to request consent to search." Stanley, 139 Or.App. at 536 , 912 P.2d at 954 .